BY ATTY. DENNIS R. GORECHO

UNDER the Philippine legal system, the reason for one’s termination of employment is as important as the manner it is done.  Both the reason and the manner must be appropriate, otherwise the termination itself is gravely defective and may be declared unjustified.

Dismissal is the ultimate penalty that can be meted to an employee. This is because a worker’s job is considered as property and the Constitution commands that no person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.  Since one’s job is property, one cannot be deprived of it without the observance of proper legal procedure.

The Philippine Overseas Employment Administration Standard Employment Contract (POEA-SEC) requires compliance with two basic requirements for a lawful dismissal: a just or authorized case as prescribed by law, and observance of due process.  The former comprises the substantive requirement, and the latter constitutes the procedural requirement for a valid dismissal.

An employer can terminate the services of an employee only for valid and just causes, which must be supported by clear and convincing evidence.

The burden of proving that the termination of an employee was for a just or authorized cause lies with the employer. If the employer fails to meet this burden, the conclusion would be that the dismissal was unjustified and, therefore, illegal.

To discharge this burden, the employer must present substantial evidence, which is defined as that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion, and not based on mere surmises or conjectures.

In any case of early termination, the seafarer must be accorded procedural due process in compliance with the provisions of Section 17 of the POEA-SEC, which requires the “two-notice rule.” An erring seafarer is given a written notice of the charge against him and is afforded an opportunity to explain or defend himself.

Before the issuance of the second notice, the requirement of a hearing must be complied with by giving the worker an opportunity to be heard. It is not necessary that an actual hearing be conducted. Should sanctions be imposed, then a written notice of penalty and the reasons for it shall be furnished the erring seafarer.

It is only in the exceptional case of clear and existing danger to the safety of the crew or vessel that the required notices are dispensed with; but just the same, a complete report should be sent to the manning agency, supported by substantial evidence of the findings.

In   consonance with Section 10 of Republic Act 8042, as amended by Republic Act 10022, an illegally dismissed Filipino seafarer salaries is entitled to the full reimbursement of his placement fee and the deductions made with interest at twelve percent (12 percent) per annum, plus his salaries for the unexpired portion of his employment contract

In Tangga-an vs Philippine Transmarine Corp.  (G.R.No.180636 March 13, 2013), the Supreme Court noted that the unexpired portion of his employment contract  includes his basic wages plus  all his other monetary benefits such as  his corresponding monthly vacation leave pay and tonnage bonuses which are expressly provided and guaranteed in his employment contract as part of his monthly salary and benefit package.

These benefits were guaranteed to be paid on a monthly basis, and were not made contingent. It is the obligation of the employer to pay an illegally dismissed employee or worker the whole amount of the salaries or wages, plus all other benefits and bonuses and general increases, to which he would have been normally entitled had he not been dismissed and had not stopped working.

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Atty. Dennis R. Gorecho is a graduate of UP College of Law (1998) and is currently a junior partner of Sapalo Velez Bundang Bulilan (SVBB) law offices. He heads the seafarers’ division. He is a speaker on nationwide paralegal seminars on seafarers’ rights.

He is presently the executive vice president of the Maritime Law Association of the Philippines (MARLAW) and an active member of the Maritime Forum Inc., the National Seafarers Day (NSD) committee and International Pro Bono Network.

The SVBB law works hand in hand with various seafarers welfare organizations such as the Apostleship of the Seas (AOS) Philippines, Luneta Seafarers Welfare Foundation (LUSWELF) and United Filipino Seafarers (UFS).

Atty. Gorecho is a legal commentator on maritime issues on print, radio and TV. A co-anchor of the radio program Bantay OCW Usapang Marino aired over Radio Inquirer/ DZIQ every Wednesday, 10:30 a.m. to 12 noon. For comments, please send email at info@sapalovelez.com or call 09175025808./PN